Does the Attitudinal Model of Supreme Court Decision Making Depend on Litigation Choices? Applying the Priest-Klein Selection Hypothesis to Litigation in the High Court

2012 ◽  
Author(s):  
Jeff L. Yates ◽  
Damon M. Cann ◽  
Brent D. Boyea
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
High Court ◽  
Selection Hypothesis ◽  
Attitudinal Model

U.S. Supreme Court Decision-Making and the Free Exercise Clause

1993 ◽  
Vol 55 (3) ◽  
pp. 511-529 ◽  
Author(s):  
Joseph A. Ignagni
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Attitudinal Model ◽  
The Supreme Court ◽  
Free Exercise Of Religion ◽  
The U.S

The U.S. Supreme Court, at various times, has changed the constitutional tests it claimed to use in order to settle free exercise of religion disputes. These changes in official doctrine and the manner in which many cases have been decided have left the Supreme Court open to much criticism from legal scholars. This study differs substantially from previous work in this area. It uses a fact-attitudinal model to analyze the cases from the Warren, Burger, and Rehnquist Courts. Its findings indicate that these decisions are, generally, explainable and predictable.

scholarly journals Supreme Court Decision Making: An Individual-Level Analysis of the Establishment Clause Cases During the Burger and Rehnquist Court Years

1994 ◽  
Vol 15 ◽  
pp. 21-42 ◽  
Author(s):  
Joseph A. Ignagni
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Establishment Clause ◽  
Rehnquist Court ◽  
Individual Level ◽  
Burger Court ◽  
Attitudinal Model ◽  
State Relations

In the first Establishment Clause case decided by the Burger Court, the U.S. Supreme Court laid down a new constitutional test. With this addition, the Court now had in place the third prong of a three-part Establishment Clause test. However, this three-part test has not settled what is allowable in church-state relations for many scholars. In fact, it is often complained that constitutional law in this area is confused and conflicting. This study attempts to show that the votes of the justices are not as uncertain or unpredictable as previously has been claimed. It also endeavors to contribute to explaining Supreme Court decision making in general. A fact-attitudinal model is derived from judicial behavior theory, cognitive-cybernetic decision-making theory, and the writings of the justices themselves. The results suggest that the model has explanatory as well as predictive value during both the Burger and early Rehnquist Court years.

scholarly journals Politics and Constitutional Law: A Distinction without a Difference?

2019 ◽  
Vol 0 (0) ◽  
Author(s):  
Robert J. McKeever
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
The Political ◽  
American Government ◽  
True Nature ◽  
Attitudinal Model ◽  
Interpretive Methods ◽  
Legal Model

Abstract This article examines the relationship between Politics and Law in U.S. Supreme Court decision-making. It argues that three major developments in recent decades have combined to undermine the Court’s status as a legal and judicial institution, and instead define it as political actor, motivated by ideology and the personal policy predilections of the Court’s Justices. The first of these elements is the increasingly political and partisan nature of the Supreme Court appointment process, as witnessed by the recent Gorsuch and Kavanaugh nominations. The behaviour of the President and Senators in these controversial appointments conclusively demonstrates that the country’s leading politicians view the Court as primarily a political body rather than a legal one. The second element of the assault on the Court’s status as a judicial institution is the rise in influence of the behaviouralist school of Supreme Court analysis. Beginning with the work of academics such as Glendon Schubert, the behaviouralists employed new methods and theories in an attempt to debunk the Legal Model of Supreme Court decision-making and to replace it with what is known today as the Attitudinal Model. It forcibly argues that Supreme Court Justices are political in intent and decision, with legal language and arguments being no more than judicial camouflage to disguise their true nature. This applies equally to both conservative and liberal justices. The article identifies the third element of the assault on the status of the Court as a legal institution as coming from Originalist scholars, activists and judges who accuse liberal Justices of having abandoned traditional interpretive methods in favour of redefining the language of the Constitution to suit their progressive political agenda. Originalists acknowledge that their own interpretive methods may lead to results deemed unacceptable to contemporary Americans, but argue that it the duty of the political branches of government, not the courts, to modernise policy and practice. This article concludes that while Originalism has genuine appeal as a theory of interpretation, it is nevertheless both impractical and undesirable. Moreover, rather than returning the Court to the Legal Model, the Originalist campaign has only served to persuade many that the Attitudinal Model is an accurate one. However, the article also argues that the break with Originalism by the Warren Court over segregation has developed into a wholesale change in the Court’s role in American government, one that ill-becomes the unelected judiciary in a representative democracy. It is argued here that the best way to restore the legal and judicial identity of the Court would be a return to the emphasis on ‘judicial role’, once championed by great jurists such as Learned Hand, Oliver Wendell Holmes, Louis Brandeis and John Harlan II. Judicial modesty and restraint would distinguish the Court from the political branches of American government. The Court should decide less and only where the case for a decision of unconstitutionality is very clear and very compelling.

Reality Check: On the Uses of Empiricism

2008 ◽  
Vol 21 (2) ◽  
pp. 447-457 ◽  
Author(s):  
Peter J. Carver
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Supreme Court Of Canada ◽  
High Court ◽  
Theoretical Approaches ◽  
Reality Check ◽  
Attitudinal Model ◽  
The Supreme Court ◽  
American Political Science

This Critical Notice deals with two recent books that report the findings of statistical analyses of Supreme Court of Canada judgments over extensive periods of time. The authors of both studies argue that empirical analysis can make significant contributions to theories of law and the understanding of what high court judges do, and in fact, that theoretical approaches on their own are necessarily inadequate to this task. The review questions whether the studies succeed in meeting the ambitions set for them. In Attitudinal Decision-making in the Supreme Court of Canada, Ostberg and Wetstein fail to establish that the attitudinal model of jurisprudence developed by American political science provides a strong explanation of the performance of the Supreme Court of Canada. In The Empirical Gap in Jurisprudence, Daved Muttart employs such broadly stated measures of judicial reasoning that his conclusions about the Court’s performance remain general in nature and do not pose serious challenges to the major, competing schools of jurisprudential thought he seeks to examine. Both studies fall back on unconvincing arguments about the prevalence of judicial activism in Supreme Court decision-making in the absence of stronger findings on their principal themes.

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